Experts before ITLOS: An Overview of the Tribunal’s Practice

Experts before ITLOS: An Overview of the Tribunal’s Practice Abstract The article clarifies the notion of the expert, observing that, in proceedings before the International Tribunal for the Law of the Sea (‘Tribunal’ or ITLOS), parties have made extensive use of expert evidence. The Tribunal’s Rules contain provisions to safeguard the impartiality and credibility of expert statements and to enable the Tribunal to play an active role in dealing with expert evidence. The function of the Tribunal in promoting impartial and credible expert statements is illustrated. These examples refer inter alia to the power of the Tribunal to assess the relevance—and thus admissibility—of expert statements, the need to avoid confusion between expert and party representative, the use of ‘voir dire’ in international proceedings, and the pro-active role the Tribunal may play in ensuring disclosure of relevant information. Thus, although the main responsibility of providing evidence lies with parties, the Tribunal may, under its Rules, play a useful role in ensuring that facts are based on reliable evidence. In these brief comments, I will present you with a series of snapshots in order to give you an overview of the practice of the ITLOS regarding the item under consideration. Before doing so, I would like to make four preliminary comments: Firstly, the participation of an ‘expert’ in proceedings before the Tribunal may refer to different notions. Usually, an expert will be called by a party to present evidence during the oral proceedings. Articles 72, 73, 78 and 80 of the Rules refer to such an expert. Under Article 82 of the Rules, the Tribunal may also, if it considers it necessary, decide to request an expert opinion. In addition, nothing prevents a party from annexing statements made by an expert to its written pleadings. Under the Tribunal’s Rules, a distinction is made between an expert—who has specific knowledge on a particular matter—and a witness—who may give an account of facts. In practice, a person could combine both statuses and be at the same time an expert and a witness.1 Finally, the notion of ‘expert’ described above is completely separate from the ‘experts’ referred to under Article 289 of the United Nations Convention on the Law of the Sea (the ‘Convention’). Article 289 refers to experts who sit with the Tribunal and participate in the deliberations but without the right to vote. Secondly, in proceedings before ITLOS, parties have made extensive use of the possibility offered to them by the Rules to provide evidence in the form of expert opinions and witness testimonies. Of 23 contentious cases brought before the Tribunal as of 31 December 2017, parties have called witnesses and experts in 13 cases. As a result, according to my calculation, in those proceedings a total number of 23 experts, 18 witnesses and one expert/witness have appeared before the Tribunal. Thirdly, the Rules of the Tribunal contain a number of provisions which are intended to safeguard the impartiality and credibility of experts’ and witnesses’ statements. In this context, three points may be mentioned: Under Article 79 of the Rules, every witness, before giving evidence, and every expert, before making any statement, has to take an oath and read out in front of the Tribunal the text of a solemn declaration stating that he/she ‘will speak the truth, the whole truth and nothing but the truth’; In the case of an expert, the text of the declaration, as contained in article 79 (b) of the Rules is as follows: ‘I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth, and that my statement will be in accordance with my sincere belief’ Before testifying, witnesses and experts called by the parties have to remain out of court pursuant to Article 80 of the Rules. The reason for this rule is to prevent the expert or witness being influenced by the exchange of arguments during the hearing. Obviously, strict observance of this rule today would require the expert/witness not to have access to a phone or internet connection, since the public sittings are broadcast on the internet; Article 72 of the Rules also contains important procedural requirements with a view to ensuring that parties are informed, well in advance of the oral proceedings, of the names of any expert and witness whom a party intends to call and of the points to which his/her evidence will be directed. This gives the parties the opportunity to review the matter and to prepare the cross-examination of the experts and witnesses. It could also enable any party to raise, prior to the hearing, any concern it would have vis-à-vis, for example, the credibility of a particular witness or expert or the relevance of an issue2 in respect of which the other party wishes to bring evidence. A fourth preliminary comment relates to the role of international courts and tribunals in the collection of evidence. Traditionally, in international litigation, the burden of providing evidence lies with the parties. Usually, an international court or tribunal will handle evidence produced by the parties. Nevertheless, nothing prevents an international court or tribunal from playing a more active role in this respect. In the case of the Tribunal, this is envisaged under its Rules. For example, under Article 76 of the Rules, the Tribunal may, prior to or during the hearing, put questions to the parties or ask the parties to specially address specific points. Under Article 77, paragraph 1, of the Rules, the ‘Tribunal may at any time call upon the parties to produce such evidence or to give such explanations as the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose’. It ‘may also, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings’.3 If the Tribunal decides to arrange for an inquiry or an expert opinion, it ‘shall, after hearing the parties, issue an order to this effect, defining the subject of the inquiry or expert opinion, stating the number and mode of appointment of the persons to hold the inquiry or of the experts and laying down the procedure to be followed’.4 After this introduction, I will refer to a couple of examples from the practice of the Tribunal. These examples will address the role of the Tribunal and the parties in ensuring that witnesses’ and experts’ statements are impartial and credible. Parties are not entirely free to call witnesses and experts to make statements on any matter. Evidence should be relevant and, in this respect, the Tribunal is perfectly entitled to decide on the relevance of any evidence which a party wishes to produce and to make a ruling on this matter. For example, in the M/V‘SAIGA’Case (Saint Vincent and the Grenadines vGuinea), Prompt Release, prior to the hearing, the Applicant submitted to the Tribunal a list of three witnesses pursuant to Article 72 of the Rules. One of the witnesses to be called by Saint Vincent and the Grenadines was the captain (Captain Dimitros Exarchos) of another vessel alleged to have been attacked by Guinean gunboats in May 1996 (ie prior to the arrest of the SAIGA on 28 October 1997). During the hearing on 27 November 1997, the President of the Tribunal stated that the ‘Tribunal finds it difficult to see the relevance of the evidence of that witness to the present case’ and informed the parties that ‘therefore it is our ruling that that the evidence will not be admissible’.5 In preparing the list of agents, counsel, advocates, or advisors who will appear before the Tribunal, parties also have to pay attention to the need to avoid any confusion between those who will make statements on their behalf and witnesses and experts who are expected to remain impartial. The Tribunal may play an active role in this respect. As an illustration, reference may be made to the Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia vSingapore), Provisional Measures. Prior to the oral proceedings, the applicant provided the Tribunal with the names of the members of its delegation. On this list, a person who had to present an oral statement before the Tribunal on behalf of Malaysia was referred to as ‘technical expert’. It was unclear, however, whether this person (Professor Matsura) would make a statement as an expert under Article 72 of the Rules of the Tribunal, or as a representative of Malaysia. This issue was clarified during consultations between the President of the Tribunal and the representatives of the parties, and ‘it was agreed that Professor [Matsura] would first make a statement as a member of the delegation of Malaysia’,6 ‘and then, after having made the solemn declaration under article 79, subparagraph (b), of the Rules’,7 examined as an expert by a counsel for Singapore. The Land Reclamation case also provides an example of the Tribunal’s possible role in promoting an impartial expert opinion. In the provisional measures that it adopted in this case, the Tribunal requested Malaysia and Singapore to cooperate and, for that purpose, to ‘enter into consultations forthwith in order to … establish promptly a group of independent experts’ with a precise mandate indicated in the Tribunal’s order. It may be said that the express reference to a group of ‘independent’ experts and the precise terms of their mandate were instrumental in reinforcing the impartial character of the mission conducted by the group of experts. The fact that the Tribunal may ask questions relating to the credibility and impartiality of witnesses and experts does not discharge the parties of their responsibility in this matter. As already indicated, in adversarial proceedings, the main responsibility as regards evidence lies with the parties. Parties may sometimes display creativity, one example of this being the examination of one expert on the procedure of ‘voir dire’ during the hearing in Southern Bluefin Tuna Cases (New Zealand vJapan; Australia vJapan), Provisional Measures.8 The use of ‘voir dire’, which is ‘an American procedure to test the eligibility of a witness’,9 is not contemplated under the Rules of the Tribunal. On this point, Article 80 of the Rules simply states that witnesses and experts are ‘examined by the agents, counsel or advocates of the parties starting with the party calling the witness or expert’ and that ‘[q]uestions may be put to them by the President of the Tribunal and by the judges’. In practice, examination of the witness or expert by the party calling him/her is followed by a cross-examination by the other party. Re-examination is possible but has to be limited to the issues dealt with in cross-examination without raising new issues. On the other hand, parties may propose some adjustments to the Rules.10 During the proceedings before the Tribunal in the Southern Bluefin Tuna Cases, the parties agreed that an expert called by New Zealand and Australia (Mr John Beddington) would first be examined on the ‘voir dire’ by an advocate for Japan, before being examined and cross-examined. As explained by the advocate of Japan at the beginning of the examination on the ‘voir dire’, parties to the proceedings had ‘agreed that there would be an opportunity for examination of the [expert] in advance of his direct testimony, for the agreed purposes of testing both the credibility and the capability of this [expert] to offer specialized expertise on matters relevant to the case before the court’.11 In this respect, it is interesting to examine the questions which were put to the expert, Mr Beddington. When he was examined on the ‘voir dire’, the expert was asked, inter alia, when he was first contacted by New Zealand to provide an opinion in the proceedings and by whom he was contacted, in what capacity he had, in the past, provided scientific opinions to fishery management organizations, and how the scientific literature he consulted was selected.12 It may be observed, however, that more precise questions could have been put to the expert (for example as regards his previous contracts with governments or his participation in other proceedings), particularly if they were meant to assess his independence. Incidentally, it may be observed that the line between the procedure on the ‘voir dire’ and the cross-examination does not seem to be well defined. During the proceedings in the Southern Bluefin Tuna Cases, the ‘voir dire’ was interrupted three times because of doubts regarding the relevance of the questions put to the expert.13 On the other hand, it should be kept in mind that, while the parties bear the main responsibility for producing evidence, their essential interest is the successful conclusion of their case and not necessarily the pursuit of truth per se. Parties may in some cases consider it preferable not to call any expert or witness during a hearing, although some of the issues dealt with are highly technical. The case concerning Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar) is an illustration of this point. One crucial issue to be decided by the Tribunal in this case related to the entitlement of the parties to a continental shelf extending beyond 200 nautical miles in the absence of any recommendation of the Commission on the Limits of the Continental Shelf pursuant to Article 76 of the Convention. In support of its claim for an extended continental shelf, Bangladesh submitted scientific reports prepared by two experts, Mr Joseph R. Curray and Mr Hermann Kudrass. These reports were attached as annexes to its written pleadings.14 However, Bangladesh did not call the two experts to present evidence at the hearing. Nevertheless, on Bangladesh’s list of delegates attending the hearing, they were listed as ‘independent experts’ and they were present during the hearing.15 Myanmar could also have taken advantage of their presence and called them to produce evidence before the Tribunal. There was probably no need for Bangladesh to ask the experts to make oral statements before the Tribunal. Their reports were available and were not challenged by Myanmar. Myanmar had no reason to challenge the reports since they showed that the entire floor of the Bay of Bengal, including areas claimed by Bangladesh and Myanmar, was covered by a thick layer of sedimentary rocks, and that, therefore, it met the criteria of sediment thickness under Article 76, paragraph 4(a)(i), of the Convention. As regards the Tribunal, it noted the ‘unique situation’16 of the Bay of Bengal, ‘as acknowledged in the course of negotiations at the Third United Nations Conference on the Law of the Sea’,17 and observed that the experts’ reports presented by Bangladesh, ‘which were not challenged by Myanmar’,18 indicate that ‘the sea floor of the Bay of Bengal is covered by a thick layer of sediments some 14 to 22 kilometres deep originating in the Himalayas and the Tibetan Plateau, having accumulated in the Bay of Bengal over several thousands of years’.19 On the basis of ‘uncontested scientific evidence regarding the unique nature of the Bay of Bengal and information submitted during the proceedings’,20 the Tribunal was then ‘satisfied that there is a continuous and substantial layer of sedimentary rocks extending from Myanmar’s coast to the area beyond 200 nm’.21 The fact that the parties have to present their arguments in a convincing manner does not mean that they are entitled to withhold evidence or conceal information which could be detrimental to their case or which would not correspond to the reality of the facts. In this respect, it may be noted that, under Article 77, paragraph 1, of the Rules, the Tribunal has the power to call upon the parties at any time ‘to produce such evidence or to give such explanations as the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose’. A situation where a party did not disclose relevant information is addressed in the separate opinion appended by Judge Cot to the judgment of the Tribunal in the M/V‘Louisa’Case.22 In his opinion, Judge Cot is asking the question as to whether the Tribunal was not in that case faced with fraudulent conduct on the part of counsel of one of the parties. In that case, the parties had opposing views on the nature of the activities conducted by the ‘Louisa’. The applicant, Saint Vincent and the Grenadines, claimed that the ‘Louisa’ conducted surveys of the sea floor in the bay of Cadiz ‘with a view to locating oil and gas deposits, on the basis of a permit issued’23 by the Spanish authorities. According to the respondent—Spain—the detention of the ‘Louisa’ had taken place in connection with criminal proceedings against representatives of a company (Sage) involved in the research activities of the ‘Louisa’, for illegal archaeological trafficking of objects taken in Spanish internal and territorial waters. In support of its arguments, Saint Vincent and the Grenadines called an employee of the company Sage (Mr Avella) as a witness, and an oil and gas consultant (Mr McAfee) as an expert, to give testimony at the hearing of the Tribunal.24 A statement of Mr Foster, ‘one of the “beneficial owners” of the M/V “Louisa”’,25 was also attached as an annex to the written pleadings of Saint Vincent and the Grenadines.26 These testimonies were unanimous in confirming that the activities of the ‘Louisa’ concerned oil and gas deposits. However, the factual background of the case changed slightly when, further to a request of the Tribunal,27 a copy of the contract between the company Sage and another company (Tupet Sociedad de Pesquisa Marítima S.A.) was submitted to the Tribunal. Indeed, the main clauses of the contract concerned the recovery of ‘historical artifacts, sunken vessels, or any other lost items of value’.28 The Tribunal did not have to consider this issue since it rejected the application on the basis of a lack of jurisdiction. It, nevertheless, noted ‘with regret that a copy of this agreement was not provided by the Applicant until after the request was made by the Tribunal’.29 In his separate opinion, Judge Cot observed that the copy of the contract was filed with the Tribunal after the closure of the oral proceedings and that any finding of the Tribunal on this would have required re-opening of the proceedings, which practically was not realistic. In his view, however, ‘Counsel for Saint Vincent tried knowingly to mislead the Tribunal. Furthermore, they created a serious imbalance in the proceedings and infringed the principle of equality between the parties’.30 That said, it should be underlined that the true nature of the research activities in the Bay of Cadiz came to light owing to the active role exercised by the Tribunal in the conduct of the hearing. To conclude, we may observe that, although the practice of the Tribunal confirms that the main responsibility of providing evidence lies with the parties, it also shows that the Tribunal may play a useful role in ensuring that facts are based on reliable evidence and in promoting impartial and independent statements from experts and witnesses. Footnotes 1 See ITLOS Pleadings, Minutes and Documents 2014, Vol 21, M/V ‘Virginia G’ (Panama/Guinea-Bissau), 744, concerning Mr Olives Socas who was an expert in safety and quality controls of vessels and who had also conducted inspection of the M/V Virginia G during the period of its arrest. 2 For an example, see ITLOS Pleadings, Minutes and Documents, 1997, M/V ‘SAIGA’ (St Vincent and the Grenadines vGuinea), Prompt Release, 103. 3 art 77, para 2, of the Rules. 4 art 82, para 1, of the Rules. 5 ITLOS Pleadings, (n 2) p 103. 6 ITLOS Pleadings, Minutes and Documents 2003, Vol11, Land Reclamation in and around the Straits of Johor (Malaysia vSingapore), Provisional Measures, p 32. 7 Land Reclamation in and around the Straits of Johor (Malaysia vSingapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, p 14, para 20. 8 Southern Bluefin Tuna (New Zealand vJapan; Australia vJapan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p 284, para 25. 9 Statement of Mr Crawford at the sitting on 18 August 1999 am, in ITLOS Pleadings, Minutes and Documents 1999, Vol4, Southern Bluefin Tuna (New Zealand vJapan; Australia vJapan), Provisional Measures, p 386. 10 See art 48 of the Rules: ‘The parties may jointly propose particular modifications or additions to the Rules contained in this Part, which may be applied by the Tribunal or by a chamber if the Tribunal or the chamber considers them appropriate in the circumstances of the case.’ 11 ITLOS Pleadings, (n 9) pp 386–87. 12 See ibid pp 387–95. 13 See ibid p 391 (intervention by Mr Crawford, Counsel of Australia), p 396 (intervention by the President), and p 398 (intervention by the President). 14 See Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p 115, para 444. 15 See ibid p 8. ‘Mr Joseph R. Curray, Professor of Geology, Emeritus, Scripps Institution of Oceanography, University of California, United States of America, Mr Hermann Kudrass, Former Director and Professor (Retired), German Federal Institute for Geosciences and Natural Resources (BGR), Germany’ are listed as ‘Independent Experts’. 16 Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar) (n 14) p 115, para 444. 17 ibid. 18 ibid. 19 ibid. 20 ibid p 115, para 446. 21 ibid. 22 Separate opinion of Judge Cot, M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, pp 120–23. See also J-P Cot, ‘Fraud on the Tribunal?’ in L del Castillo (ed), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea, Liber Amicorum Hugo Caminos (Brill, Nijhoff 2015) 595–607. 23 M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, p 23, para 46. 24 ibid pp 14–15, para 30. 25 ibid p 27, para 64. 26 See ITLOS Pleadings, Minutes and Documents 2013, Vol19, M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Merits, pp 285–86. 27 See question No 4 posed by the Tribunal to the parties: ‘What were the terms of the contract concluded between the company Sage and the company Tupet? Is it possible to receive a copy of the contract?’, M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, p 17, para 36. 28 See the provisions quoted in the Tribunal’s Judgment, in M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, pp 22–24, para 47. See, for example, s 1.04 of the agreement, (viii): ‘The recovered items shall include but not be limited to gold bars and discs, gold chains, two- four- and eight-escudo gold coins, silver bars, wedges or barretones, silverware and gilded silverware, one- two- four- and eight-real silver coins, navigational instruments, loose and set precious stones […], jewelry […], religious artifacts […], bronze cannons, swords, muskets, daggers, and all other materials of value.’, ibid p 24, para 47. 29 ibid p 24, para 47. 30 ibid p 121, para 72. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

Experts before ITLOS: An Overview of the Tribunal’s Practice

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Abstract

Abstract The article clarifies the notion of the expert, observing that, in proceedings before the International Tribunal for the Law of the Sea (‘Tribunal’ or ITLOS), parties have made extensive use of expert evidence. The Tribunal’s Rules contain provisions to safeguard the impartiality and credibility of expert statements and to enable the Tribunal to play an active role in dealing with expert evidence. The function of the Tribunal in promoting impartial and credible expert statements is illustrated. These examples refer inter alia to the power of the Tribunal to assess the relevance—and thus admissibility—of expert statements, the need to avoid confusion between expert and party representative, the use of ‘voir dire’ in international proceedings, and the pro-active role the Tribunal may play in ensuring disclosure of relevant information. Thus, although the main responsibility of providing evidence lies with parties, the Tribunal may, under its Rules, play a useful role in ensuring that facts are based on reliable evidence. In these brief comments, I will present you with a series of snapshots in order to give you an overview of the practice of the ITLOS regarding the item under consideration. Before doing so, I would like to make four preliminary comments: Firstly, the participation of an ‘expert’ in proceedings before the Tribunal may refer to different notions. Usually, an expert will be called by a party to present evidence during the oral proceedings. Articles 72, 73, 78 and 80 of the Rules refer to such an expert. Under Article 82 of the Rules, the Tribunal may also, if it considers it necessary, decide to request an expert opinion. In addition, nothing prevents a party from annexing statements made by an expert to its written pleadings. Under the Tribunal’s Rules, a distinction is made between an expert—who has specific knowledge on a particular matter—and a witness—who may give an account of facts. In practice, a person could combine both statuses and be at the same time an expert and a witness.1 Finally, the notion of ‘expert’ described above is completely separate from the ‘experts’ referred to under Article 289 of the United Nations Convention on the Law of the Sea (the ‘Convention’). Article 289 refers to experts who sit with the Tribunal and participate in the deliberations but without the right to vote. Secondly, in proceedings before ITLOS, parties have made extensive use of the possibility offered to them by the Rules to provide evidence in the form of expert opinions and witness testimonies. Of 23 contentious cases brought before the Tribunal as of 31 December 2017, parties have called witnesses and experts in 13 cases. As a result, according to my calculation, in those proceedings a total number of 23 experts, 18 witnesses and one expert/witness have appeared before the Tribunal. Thirdly, the Rules of the Tribunal contain a number of provisions which are intended to safeguard the impartiality and credibility of experts’ and witnesses’ statements. In this context, three points may be mentioned: Under Article 79 of the Rules, every witness, before giving evidence, and every expert, before making any statement, has to take an oath and read out in front of the Tribunal the text of a solemn declaration stating that he/she ‘will speak the truth, the whole truth and nothing but the truth’; In the case of an expert, the text of the declaration, as contained in article 79 (b) of the Rules is as follows: ‘I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth, and that my statement will be in accordance with my sincere belief’ Before testifying, witnesses and experts called by the parties have to remain out of court pursuant to Article 80 of the Rules. The reason for this rule is to prevent the expert or witness being influenced by the exchange of arguments during the hearing. Obviously, strict observance of this rule today would require the expert/witness not to have access to a phone or internet connection, since the public sittings are broadcast on the internet; Article 72 of the Rules also contains important procedural requirements with a view to ensuring that parties are informed, well in advance of the oral proceedings, of the names of any expert and witness whom a party intends to call and of the points to which his/her evidence will be directed. This gives the parties the opportunity to review the matter and to prepare the cross-examination of the experts and witnesses. It could also enable any party to raise, prior to the hearing, any concern it would have vis-à-vis, for example, the credibility of a particular witness or expert or the relevance of an issue2 in respect of which the other party wishes to bring evidence. A fourth preliminary comment relates to the role of international courts and tribunals in the collection of evidence. Traditionally, in international litigation, the burden of providing evidence lies with the parties. Usually, an international court or tribunal will handle evidence produced by the parties. Nevertheless, nothing prevents an international court or tribunal from playing a more active role in this respect. In the case of the Tribunal, this is envisaged under its Rules. For example, under Article 76 of the Rules, the Tribunal may, prior to or during the hearing, put questions to the parties or ask the parties to specially address specific points. Under Article 77, paragraph 1, of the Rules, the ‘Tribunal may at any time call upon the parties to produce such evidence or to give such explanations as the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose’. It ‘may also, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings’.3 If the Tribunal decides to arrange for an inquiry or an expert opinion, it ‘shall, after hearing the parties, issue an order to this effect, defining the subject of the inquiry or expert opinion, stating the number and mode of appointment of the persons to hold the inquiry or of the experts and laying down the procedure to be followed’.4 After this introduction, I will refer to a couple of examples from the practice of the Tribunal. These examples will address the role of the Tribunal and the parties in ensuring that witnesses’ and experts’ statements are impartial and credible. Parties are not entirely free to call witnesses and experts to make statements on any matter. Evidence should be relevant and, in this respect, the Tribunal is perfectly entitled to decide on the relevance of any evidence which a party wishes to produce and to make a ruling on this matter. For example, in the M/V‘SAIGA’Case (Saint Vincent and the Grenadines vGuinea), Prompt Release, prior to the hearing, the Applicant submitted to the Tribunal a list of three witnesses pursuant to Article 72 of the Rules. One of the witnesses to be called by Saint Vincent and the Grenadines was the captain (Captain Dimitros Exarchos) of another vessel alleged to have been attacked by Guinean gunboats in May 1996 (ie prior to the arrest of the SAIGA on 28 October 1997). During the hearing on 27 November 1997, the President of the Tribunal stated that the ‘Tribunal finds it difficult to see the relevance of the evidence of that witness to the present case’ and informed the parties that ‘therefore it is our ruling that that the evidence will not be admissible’.5 In preparing the list of agents, counsel, advocates, or advisors who will appear before the Tribunal, parties also have to pay attention to the need to avoid any confusion between those who will make statements on their behalf and witnesses and experts who are expected to remain impartial. The Tribunal may play an active role in this respect. As an illustration, reference may be made to the Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia vSingapore), Provisional Measures. Prior to the oral proceedings, the applicant provided the Tribunal with the names of the members of its delegation. On this list, a person who had to present an oral statement before the Tribunal on behalf of Malaysia was referred to as ‘technical expert’. It was unclear, however, whether this person (Professor Matsura) would make a statement as an expert under Article 72 of the Rules of the Tribunal, or as a representative of Malaysia. This issue was clarified during consultations between the President of the Tribunal and the representatives of the parties, and ‘it was agreed that Professor [Matsura] would first make a statement as a member of the delegation of Malaysia’,6 ‘and then, after having made the solemn declaration under article 79, subparagraph (b), of the Rules’,7 examined as an expert by a counsel for Singapore. The Land Reclamation case also provides an example of the Tribunal’s possible role in promoting an impartial expert opinion. In the provisional measures that it adopted in this case, the Tribunal requested Malaysia and Singapore to cooperate and, for that purpose, to ‘enter into consultations forthwith in order to … establish promptly a group of independent experts’ with a precise mandate indicated in the Tribunal’s order. It may be said that the express reference to a group of ‘independent’ experts and the precise terms of their mandate were instrumental in reinforcing the impartial character of the mission conducted by the group of experts. The fact that the Tribunal may ask questions relating to the credibility and impartiality of witnesses and experts does not discharge the parties of their responsibility in this matter. As already indicated, in adversarial proceedings, the main responsibility as regards evidence lies with the parties. Parties may sometimes display creativity, one example of this being the examination of one expert on the procedure of ‘voir dire’ during the hearing in Southern Bluefin Tuna Cases (New Zealand vJapan; Australia vJapan), Provisional Measures.8 The use of ‘voir dire’, which is ‘an American procedure to test the eligibility of a witness’,9 is not contemplated under the Rules of the Tribunal. On this point, Article 80 of the Rules simply states that witnesses and experts are ‘examined by the agents, counsel or advocates of the parties starting with the party calling the witness or expert’ and that ‘[q]uestions may be put to them by the President of the Tribunal and by the judges’. In practice, examination of the witness or expert by the party calling him/her is followed by a cross-examination by the other party. Re-examination is possible but has to be limited to the issues dealt with in cross-examination without raising new issues. On the other hand, parties may propose some adjustments to the Rules.10 During the proceedings before the Tribunal in the Southern Bluefin Tuna Cases, the parties agreed that an expert called by New Zealand and Australia (Mr John Beddington) would first be examined on the ‘voir dire’ by an advocate for Japan, before being examined and cross-examined. As explained by the advocate of Japan at the beginning of the examination on the ‘voir dire’, parties to the proceedings had ‘agreed that there would be an opportunity for examination of the [expert] in advance of his direct testimony, for the agreed purposes of testing both the credibility and the capability of this [expert] to offer specialized expertise on matters relevant to the case before the court’.11 In this respect, it is interesting to examine the questions which were put to the expert, Mr Beddington. When he was examined on the ‘voir dire’, the expert was asked, inter alia, when he was first contacted by New Zealand to provide an opinion in the proceedings and by whom he was contacted, in what capacity he had, in the past, provided scientific opinions to fishery management organizations, and how the scientific literature he consulted was selected.12 It may be observed, however, that more precise questions could have been put to the expert (for example as regards his previous contracts with governments or his participation in other proceedings), particularly if they were meant to assess his independence. Incidentally, it may be observed that the line between the procedure on the ‘voir dire’ and the cross-examination does not seem to be well defined. During the proceedings in the Southern Bluefin Tuna Cases, the ‘voir dire’ was interrupted three times because of doubts regarding the relevance of the questions put to the expert.13 On the other hand, it should be kept in mind that, while the parties bear the main responsibility for producing evidence, their essential interest is the successful conclusion of their case and not necessarily the pursuit of truth per se. Parties may in some cases consider it preferable not to call any expert or witness during a hearing, although some of the issues dealt with are highly technical. The case concerning Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar) is an illustration of this point. One crucial issue to be decided by the Tribunal in this case related to the entitlement of the parties to a continental shelf extending beyond 200 nautical miles in the absence of any recommendation of the Commission on the Limits of the Continental Shelf pursuant to Article 76 of the Convention. In support of its claim for an extended continental shelf, Bangladesh submitted scientific reports prepared by two experts, Mr Joseph R. Curray and Mr Hermann Kudrass. These reports were attached as annexes to its written pleadings.14 However, Bangladesh did not call the two experts to present evidence at the hearing. Nevertheless, on Bangladesh’s list of delegates attending the hearing, they were listed as ‘independent experts’ and they were present during the hearing.15 Myanmar could also have taken advantage of their presence and called them to produce evidence before the Tribunal. There was probably no need for Bangladesh to ask the experts to make oral statements before the Tribunal. Their reports were available and were not challenged by Myanmar. Myanmar had no reason to challenge the reports since they showed that the entire floor of the Bay of Bengal, including areas claimed by Bangladesh and Myanmar, was covered by a thick layer of sedimentary rocks, and that, therefore, it met the criteria of sediment thickness under Article 76, paragraph 4(a)(i), of the Convention. As regards the Tribunal, it noted the ‘unique situation’16 of the Bay of Bengal, ‘as acknowledged in the course of negotiations at the Third United Nations Conference on the Law of the Sea’,17 and observed that the experts’ reports presented by Bangladesh, ‘which were not challenged by Myanmar’,18 indicate that ‘the sea floor of the Bay of Bengal is covered by a thick layer of sediments some 14 to 22 kilometres deep originating in the Himalayas and the Tibetan Plateau, having accumulated in the Bay of Bengal over several thousands of years’.19 On the basis of ‘uncontested scientific evidence regarding the unique nature of the Bay of Bengal and information submitted during the proceedings’,20 the Tribunal was then ‘satisfied that there is a continuous and substantial layer of sedimentary rocks extending from Myanmar’s coast to the area beyond 200 nm’.21 The fact that the parties have to present their arguments in a convincing manner does not mean that they are entitled to withhold evidence or conceal information which could be detrimental to their case or which would not correspond to the reality of the facts. In this respect, it may be noted that, under Article 77, paragraph 1, of the Rules, the Tribunal has the power to call upon the parties at any time ‘to produce such evidence or to give such explanations as the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose’. A situation where a party did not disclose relevant information is addressed in the separate opinion appended by Judge Cot to the judgment of the Tribunal in the M/V‘Louisa’Case.22 In his opinion, Judge Cot is asking the question as to whether the Tribunal was not in that case faced with fraudulent conduct on the part of counsel of one of the parties. In that case, the parties had opposing views on the nature of the activities conducted by the ‘Louisa’. The applicant, Saint Vincent and the Grenadines, claimed that the ‘Louisa’ conducted surveys of the sea floor in the bay of Cadiz ‘with a view to locating oil and gas deposits, on the basis of a permit issued’23 by the Spanish authorities. According to the respondent—Spain—the detention of the ‘Louisa’ had taken place in connection with criminal proceedings against representatives of a company (Sage) involved in the research activities of the ‘Louisa’, for illegal archaeological trafficking of objects taken in Spanish internal and territorial waters. In support of its arguments, Saint Vincent and the Grenadines called an employee of the company Sage (Mr Avella) as a witness, and an oil and gas consultant (Mr McAfee) as an expert, to give testimony at the hearing of the Tribunal.24 A statement of Mr Foster, ‘one of the “beneficial owners” of the M/V “Louisa”’,25 was also attached as an annex to the written pleadings of Saint Vincent and the Grenadines.26 These testimonies were unanimous in confirming that the activities of the ‘Louisa’ concerned oil and gas deposits. However, the factual background of the case changed slightly when, further to a request of the Tribunal,27 a copy of the contract between the company Sage and another company (Tupet Sociedad de Pesquisa Marítima S.A.) was submitted to the Tribunal. Indeed, the main clauses of the contract concerned the recovery of ‘historical artifacts, sunken vessels, or any other lost items of value’.28 The Tribunal did not have to consider this issue since it rejected the application on the basis of a lack of jurisdiction. It, nevertheless, noted ‘with regret that a copy of this agreement was not provided by the Applicant until after the request was made by the Tribunal’.29 In his separate opinion, Judge Cot observed that the copy of the contract was filed with the Tribunal after the closure of the oral proceedings and that any finding of the Tribunal on this would have required re-opening of the proceedings, which practically was not realistic. In his view, however, ‘Counsel for Saint Vincent tried knowingly to mislead the Tribunal. Furthermore, they created a serious imbalance in the proceedings and infringed the principle of equality between the parties’.30 That said, it should be underlined that the true nature of the research activities in the Bay of Cadiz came to light owing to the active role exercised by the Tribunal in the conduct of the hearing. To conclude, we may observe that, although the practice of the Tribunal confirms that the main responsibility of providing evidence lies with the parties, it also shows that the Tribunal may play a useful role in ensuring that facts are based on reliable evidence and in promoting impartial and independent statements from experts and witnesses. Footnotes 1 See ITLOS Pleadings, Minutes and Documents 2014, Vol 21, M/V ‘Virginia G’ (Panama/Guinea-Bissau), 744, concerning Mr Olives Socas who was an expert in safety and quality controls of vessels and who had also conducted inspection of the M/V Virginia G during the period of its arrest. 2 For an example, see ITLOS Pleadings, Minutes and Documents, 1997, M/V ‘SAIGA’ (St Vincent and the Grenadines vGuinea), Prompt Release, 103. 3 art 77, para 2, of the Rules. 4 art 82, para 1, of the Rules. 5 ITLOS Pleadings, (n 2) p 103. 6 ITLOS Pleadings, Minutes and Documents 2003, Vol11, Land Reclamation in and around the Straits of Johor (Malaysia vSingapore), Provisional Measures, p 32. 7 Land Reclamation in and around the Straits of Johor (Malaysia vSingapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, p 14, para 20. 8 Southern Bluefin Tuna (New Zealand vJapan; Australia vJapan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p 284, para 25. 9 Statement of Mr Crawford at the sitting on 18 August 1999 am, in ITLOS Pleadings, Minutes and Documents 1999, Vol4, Southern Bluefin Tuna (New Zealand vJapan; Australia vJapan), Provisional Measures, p 386. 10 See art 48 of the Rules: ‘The parties may jointly propose particular modifications or additions to the Rules contained in this Part, which may be applied by the Tribunal or by a chamber if the Tribunal or the chamber considers them appropriate in the circumstances of the case.’ 11 ITLOS Pleadings, (n 9) pp 386–87. 12 See ibid pp 387–95. 13 See ibid p 391 (intervention by Mr Crawford, Counsel of Australia), p 396 (intervention by the President), and p 398 (intervention by the President). 14 See Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p 115, para 444. 15 See ibid p 8. ‘Mr Joseph R. Curray, Professor of Geology, Emeritus, Scripps Institution of Oceanography, University of California, United States of America, Mr Hermann Kudrass, Former Director and Professor (Retired), German Federal Institute for Geosciences and Natural Resources (BGR), Germany’ are listed as ‘Independent Experts’. 16 Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar) (n 14) p 115, para 444. 17 ibid. 18 ibid. 19 ibid. 20 ibid p 115, para 446. 21 ibid. 22 Separate opinion of Judge Cot, M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, pp 120–23. See also J-P Cot, ‘Fraud on the Tribunal?’ in L del Castillo (ed), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea, Liber Amicorum Hugo Caminos (Brill, Nijhoff 2015) 595–607. 23 M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, p 23, para 46. 24 ibid pp 14–15, para 30. 25 ibid p 27, para 64. 26 See ITLOS Pleadings, Minutes and Documents 2013, Vol19, M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Merits, pp 285–86. 27 See question No 4 posed by the Tribunal to the parties: ‘What were the terms of the contract concluded between the company Sage and the company Tupet? Is it possible to receive a copy of the contract?’, M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, p 17, para 36. 28 See the provisions quoted in the Tribunal’s Judgment, in M/V‘Louisa’(Saint Vincent and the Grenadines vKingdom of Spain), Judgment, ITLOS Reports 2013, pp 22–24, para 47. See, for example, s 1.04 of the agreement, (viii): ‘The recovered items shall include but not be limited to gold bars and discs, gold chains, two- four- and eight-escudo gold coins, silver bars, wedges or barretones, silverware and gilded silverware, one- two- four- and eight-real silver coins, navigational instruments, loose and set precious stones […], jewelry […], religious artifacts […], bronze cannons, swords, muskets, daggers, and all other materials of value.’, ibid p 24, para 47. 29 ibid p 24, para 47. 30 ibid p 121, para 72. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of International Dispute SettlementOxford University Press

Published: Apr 27, 2018

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